The Complexity of Defending People Accused of War Crimes

Criminal defense work can be tough. People often ask lawyers who represent those accused of committing crimes how they can do it. Imagine how much more challenging it could be to defend people accused of war crimes. That’s exactly what Marie O’Leary ’06 does as a legal associate at the International Criminal Tribunal for the former Yugoslavia.O’Leary often is asked how she can defend war criminals. “These are people who have been charged with grave breaches – crimes against humanity – which are not to be taken lightly,” she said. “The answer is that everyone, across the board, deserves a fair trial.”

Working at the Tribunal

The tribunal was established by the United Nations in 1993 in response to the atrocities that were committed in the former Yugoslavia, and was the first such temporary commission to be established. While it was designed to prosecute “big fish,” including Slobodan Milosevic and Radovan Karadzic, the tribunal has indicted 161 individuals. O’Leary is part of the defense team for Vlastimir Dordevic, who has been charged with persecutions on political, racial or religious grounds, murder, deportation and forcible transfer. Defense teams are made up of three to seven people, each including a lead attorney and co-counsel, and based on funding, a few team members serving as legal associates, case managers, investigators and a translator. These teams serve as public defenders, since most defendants could not fund their own defense. These cases are tremendously complex. Cases take a minimum of a year to try, and “one has been going on for four and a half years,” O’Leary said. Judgments can take months to write. In fact, one was 1,700 pages long.

When court is in session, O’Leary typically spends part of her day in court assisting the attorney, especially with the management of exhibits, which are all handled electronically, and with transcripts. While legal associates generally don’t examine witnesses, O’Leary has received special dispensation for this trial, and has conducted direct and cross examination of witnesses.The remainder of her time is spent drafting motions, reviewing documents, compiling evidence and organizing case materials. Since this case includes 10,000 pieces of discovery and 115 prosecution witnesses, organization is a huge job. “It’s a lot of work,” said O’Leary. “It’s nontraditional in rules and settings – for example, the tribunal uses a mixed system of adversarial and common law – but the essential legal duties are the same as they are in the United States.”

After she earned a journalism degree from St. Thomas in 1999, O’Leary worked as an editor at a marketing agency, did some freelance writing, and then was the marketing director at a Catholic high school.“I was exposed to a lot of legal issues in marketing environments,” she said. “Since I always wanted an advanced degree, going to law school seemed practical.”O’Leary thought she’d focus on intellectual property but was sidetracked when she worked at the Minneapolis City Attorney’s Office after her first year. “Working there was interesting, unpredictable, challenging and really attractive,” O’Leary said. The following summer, she worked through the Minnesota Justice Foundation at the 1st Judicial District Public Defender’s Office and stayed during the following semester. She did two short-term summer seminars on international maritime and criminal law. After the second seminar, she applied for an internship at the tribunal for the final semester of law school and was accepted.How does O’Leary describe her experience at UST Law? Excellent. “It was really fun – even thrilling – to be a part of something new. We could make the School of Law the way we wanted it to be.” For example, the Mentor Externship program did not have a policy to cover students studying abroad for a semester. So they wrote an addendum to the policy. “There was lots of flexibility to assist everyone to get onto their chosen paths,” she said. “That made the place something special.”Of course, the people make the place. Associate Professor Robert Delahunty was influential. “Taking International Law from him opened horizons for me,” she said. “He taught the course in a way that drew me in.” In addition, then-Associate Dean Jerry Organ and Assistant Dean Lisa Brabbit went out of their way to be available, supportive and positive. “And I made some of the best friends of my life in law school. I can’t say enough good things about my classmates,” she said.

The Road to The Hague

After her internship at the tribunal, O’Leary came back to Minnesota to graduate, take the bar exam and apply for jobs. An administrative job opened at the tribunal as the director of the internal bar association for defense, and she was hired in October 2006. “It was a great opportunity to see how international tribunals work and to meet people who work in these systems,” she said. But O’Leary wanted to do something more strictly legal, and was hired by the Dordevic defense team in December 2007. “I like that my job is not predictable. You never know what’s going to happen,” she said. “In that way, it’s like criminal law in general – the truth is stranger than fiction.” In addition, she appreciates the opportunity to work with the best and brightest from all over the world. “At any given table, there are no less than five to 10 nationalities and as many viewpoints,” she said. One of the major challenges of the job is simply being on the defense. “It’s the criminal defense team’s job to make sure defendants receive a fair trial and that guilt is proven beyond a reasonable doubt,” she said. “Media coverage makes that difficult. It’s hard to argue that the accused may not be criminally guilty when they are made out to be monsters.”Resources for the defense, both time and money, are hard to come by as well. The tribunal has a completion strategy that includes time-saving measures. “In some cases, the right to an expedient trial has been turned from a right to a burden,” O’Leary said.”Even if the defendant requests more time and waives the right, the trial won’t be delayed. You have to move as fast as possible.” In her current trial, they have been working at a very fast pace but, generally, have been fortunate to receive manageable deadlines.

Challenges notwithstanding, O’Leary is learning a lot. “I have a much better understanding of where international criminal law is today,” she said. “It’s very much in the infant or toddler stage, as we’ve experienced in this tribunal. We’re fleshing it out as we go. It will be interesting to see how the hard lessons learned will be applied in a permanent court.”Other lessons are more personal. “I’ve learned that everyone has their own perceptions, and that individual realities can be wildly different from person to person,” she said. “I’m really experiencing it here, listening to people who have gone through traumatic experiences and seeing all the different sides that can come out of the same event.” O’Leary sees many sides of these events clearly, especially the side that says that everyone – everyone – deserves a fair trial.